Ministerial Discretion Research Articles

ФОРМУЛЬНОЕ РАСПРЕДЕЛЕНИЕ: ВОПРОСЫ ТЕОРИИ

The current international tax system, which is based on separate accounting for corporate affiliates trading at arm’s length prices, is increasingly viewed as prone to abuse. Multinational enterprises have become adept at manipulating the rules of the current system to shift profits from high-tax to low-tax (or no-tax) jurisdictions. At the same time, each country’s law sets corporate income tax rates as well as bases, which may be eroded by tax incentives provided via legislation or ministerial discretion. These laws are further overlaid by a network of bilateral tax treaties, which alter the tax treatment of investment depending on the particular source and residence countries involved. This makes administration and enforcement of the corporate income tax costly, especially for developing country governments. Corporate compliance costs also increase with complexity. One fundamental reform proposal is to replace the current system of separate accounting by formulary apportionment.

An empirical review of petroleum revenue management and distribution after a decade of oil production and export in Ghana

The discovery of commercial quantities of hydrocarbons in Ghana in 2007 expedited the enactment of various carefully thought-out legal and regulatory frameworks implemented specifically to facilitate the collection and distribution of petroleum revenues. The Petroleum Revenue Management Act, 2011 (Act 815) amended by Act 893, 2015 was enacted to ensure efficient collection and allocation of revenues in a sustainable and transparent manner. This study examines petroleum revenue collection and allocation in commercial production from 2011 to 2020. Content analysis was applied to secondary data sourced from notable institutions such as the Public Interest and Accountability Committee, Bank of Ghana and Ministry of Finance. The information retrieved was then analysed. The study revealed that, within the 10-year period, a total of US$6.55 billion has come to the state, out of which US$6.52 billion has been allocated based on the Petroleum Revenue Management Act (PRMA). The Carried and Participating Interest has been the most significant source of revenue to the state; contributing 58.1% followed by Royalty Payments (25%) and Corporate Income Tax (16.5%). The study concludes that petroleum revenue collection and allocation has largely been done with reference to the PRMA. However, ministerial discretion and lack of a clear-cut definition of the priority areas are sources of abuse to oil revenue management. The study, thus, calls for reforms in the management and use of oil revenues to help ensure long-run benefit and sustainability.

Oil Spills in the Niger Delta-Does the Petroleum Industry Act 2022 Offer Guidance for Solving this Problem?

Oil exploration and production in the Niger Delta have resulted in massive oil spills and lasting environmental damage to the region. This article critically examines the legal and regulatory dimensions of this problem. It looks at the general statutory provisions governing oil spills in the Niger Delta to see whether there are gaps and deficiencies in the existing laws and policies which cause or exacerbate oil spills in the region. It further looks at the implementation and enforcement of the laws, particularly the effectiveness or lack thereof of the polluter-pays principle, adequacy of funding for environmental remediation, issues relating to standard setting and ministerial discretion, as well as the issues associated with the security problems in the Niger Delta. The article concurrently reviews relevant sections of the newly enacted Petroleum Industry Act (PIA), 2021 to see whether it offers guidance for solving the endemic problem of oil spills in the Niger Delta. It is concluded that poorly developed laws, and weak institutions that result in weak implementation and enforcement protocols remain largely to blame for the problem of oil spills in the Niger Delta. It also discusses how the PIA can be strengthened to address persisting gaps in the design and implementation of oil spill responses in Nigeria.
 Keywords: Oil spill; Niger Delta; Petroleum Industry Act (PIA) 2021; multinational oil companies; polluter-pays principle; oil pipeline sabotage

Refugees and Asylum Seekers as Workers: Radical Temporariness and Labour Exploitation in Australia

This article analyses the emerging evidence of labour exploitation of refugees and asylum seekers on temporary visas in Australia. Over the last decade, Australia’s temporary protection regime has been marked by profound uncertainty in relation to visa status, unfettered Ministerial discretion, and the punitive exercise of governmental power. We argue that this framework amounts to abuse of governmental power, confining refugees and asylum seekers who arrived by boat to a situation of radical temporariness in Australia. This results not only in the denial of permanent protection and social inclusion to these refugees and asylum seekers, but also provides conditions for greater abuse of power by employers in the realm of workplaces across Australia. We outline six factors related to temporary immigration status and other punitive, unpredictable and arbitrary elements in this regulatory regime that currently increase the vulnerability of refugees and asylum seekers to labour exploitation.

Diplomatic Assurances as a Basis for Extradition to the People’s Republic of China

China human rights experts have responded with scepticism to a “troubling precedent” handed down by the New Zealand Supreme Court in June. The decision, in Minister of Justice v Kim [2021] NZSC 57, opens the way for the country's Minister of Justice to approve the extradition of a man suspected of murder to the People's Republic of China (PRC). Our concern is that the Court’s underlying assumptions represent more of a politically convenient “noble lie” in terms of New Zealand-PRC bilateral relations than a reflection of current evidence. That is to say, judicial concern to leave room for a reasonable ministerial decision that the PRC can be relied on to stick to its assurances means that the Court downplays how the PRC actually has behaved in practice. Furthermore, the current structure of New Zealand’s extradition laws means the Court’s approach of maintaining final ministerial discretion allows the ultimate question of the defendant’s fate to be answered using a process that is worryingly tainted by geopolitical considerations. If nothing else, this case demonstrates why the underlying statutory framework needs amending in line with recommendations from the Law Commission.

Determining the limits of the ministerial discretion to renew petroleum leases in Nigeria – Shell v Minister of Petroleum

It has been a moot point whether the Nigerian Minister of Petroleum has unfettered discretion to renew, withhold or delay renewal of petroleum oil mining leases (OMLs). This paper analyses the recent decision of Nigeria’s Federal High Court in Shell v Minister of Petroleum in this regard. It argues that the renewal of OMLs is a matter of course once the OML holder has performed its obligations under the petroleum lease and the Petroleum Act. It further contends that the Petroleum Act having preserved the duration of pre-1969 OMLs, their renewals ought to be for the same duration.

Sustaining Canadian marine biodiversity: Policy and statutory progress

A 2012 Expert Panel Report on marine biodiversity by the Royal Society of Canada (RSC) concluded that Canada faced significant challenges in achieving sustainable fisheries, regulating aquaculture, and accounting for climate change. Relative to many countries, progress by Canada in fulfilling international obligations to sustain biodiversity was deemed poor. To track progress by Canada since 2012, the RSC struck a committee to track policy and statutory developments on matters pertaining to marine biodiversity and to identify policy challenges, and leading options for implementation that lie ahead. The report by the Policy Briefing Committee is presented here. It concluded that Canada has made moderate to good progress in some areas, such as prioritization of oceans stewardship and strengthening of the evidentiary use of science in decision-making. Key statutes were strengthened through amendments, including requirements to rebuild depleted fisheries ( Fisheries Act) and new means of creating marine protected areas ( Oceans Act) that allowed Canada to exceed its international obligation to protect 10% of coastal and marine areas by 2020. Public release of mandate letters has strengthened ministerial accountability. However, little or no progress has been made in reducing regulatory conflict with Fisheries and Oceans Canada (DFO), decreasing ministerial discretion under the Fisheries Act, clarifying the role of science in sustainable fisheries policy, and accounting for climate change. Five future policy challenges are identified: (1) Ensure climate change impacts and projections are incorporated into ocean-related decision making and planning processes; (2) Resolve DFO’s regulatory conflict to conserve and exploit biodiversity; (3) Limit ministerial discretionary power in fisheries management decisions; (4) Clarify ambiguities in how the Precautionary Approach is applied in sustainable fisheries policy; and (5) Advance and implement marine spatial planning. Since 2012, there has been progress in recovering and sustaining the health of Canada’s oceans. Failure to further strengthen biodiversity conservation threatens the capacity of Canada’s oceans to provide ecosystem services that contribute to the resilience of marine life and the well-being of humankind. Unprecedented and enduring changes in the ocean caused by climate change have made the achievement of meaningful progress all the more urgent.

The destruction phase of public sector innovation: regulations governing school closure in Australia

In the Schumpeterian conception, innovation is the "perennial gale of creative destruction" (Schumpeter 1976 [1942], p. 84). This evolutionary process consists of two entangled but distinct forces; the creation phase and the destruction phase. This insight has been applied to non-market production. However, studies in public sector innovation are almost exclusively focused on the creation phase. This paper presents a new way of identifying mechanisms for destruction in the public sector context by analyzing the regulatory framework governing service delivery. The study presents an analysis of the regulations governing school closure in Australia, which is supplemented with an historical case study. The study finds that Ministerial discretion is the sole mechanism of school closure. It is proposed that this method of analysis is capable of being applied to other public sector services. Overall, the implication from this analysis is that an understanding of regulatory constraints is fundamental to a Schumpeterian understanding of public sector innovation.

The Destruction Phase of Public Sector Innovation: Regulations Governing School Closure in Australia

In the Schumpeterian conception, innovation is the ‘perennial gale of creative destruction’ (Schumpeter 1976 [1942], p. 84). This evolutionary pro-cess consists of two entangled but distinct forces; the creation phase and the de-struction phase. This insight has been applied to non-market production. How-ever, studies in Public Sector Innovation are almost exclusively focused on the creation phase. This paper presents a new way of identifying mechanisms for destruction in the public sector context by analyzing the regulatory framework governing service delivery. The study presents an analysis of the regulations governing school closure in Australia, which is supplemented with an historical case study. The study finds that Ministerial discretion is the sole mechanism of school closure. It is proposed that this method of analysis is capable of being applied to other public sector services. Overall, the implication from this analysis is that an understanding of regulatory constraints is fundamental to the Schumpeterian understanding of public sector innovation.

Academic freedom and an invitation to promote its advancement

AbstractAcademic freedom is under threat internationally. Several high profile incidents suggest that academic freedom is a principle neither well understood nor appreciated by key decision makers and stakeholders whom one might expect to champion it, be they in government or within the academy itself. Among those incidents are the arbitrary exercise of ministerial discretion to override the Australian Research Council expert peer review recommendations for allocation of funding, recent attacks on the credibility of academic publishing internationally, and the atrocious treatment of scholars by authoritarian regimes across the globe. In light of such developments, the membership of the Institute of Australian Geographers recently adopted a resolution that, inter alia, called on the Council of the Institute of Australian Geographers ‘not to be silent on the issue of attacks on critical scholarship, academic freedom and the integrity of academic procedures in higher education, research and publishing’. Given the complexity of the issues, this paper invites further discussion and debate on how Australian geography and geographers might better appreciate and advance academic freedom including via the promotion of scholarship that gives full effect to the principle.

Canada's Assisted Human Reproduction Act: Pragmatic Reforms in Support of Research.

Canada's Assisted Human Reproduction Act is long overdue for Parliamentary review. We argue that the current regulation of research using human reproductive materials is not proportionate, not responsive to the uncertain threats posed to human and environmental health and safety, and is not considerate of diverse values in a democratic society. We propose tailored regulatory carve-outs for in vitro research for currently prohibited activities, such as gene editing, and for the exercise of Ministerial Discretion for access by Canadians to experimental in vivo interventions that are currently prohibited, such as mitochondrial replacement therapy. Our recommendations are bounded by constitutional constraints that recognize political and practical challenges in keeping oversight of this research under Federal jurisdiction, whether conducted in academic or private sectors. The proposed nuanced regulatory scheme should be overseen by a new national Agency, modeled on a blend of the Canadian Stem Cell Oversight Committee and Assisted Human Reproduction Canada.

Disputing Denied Downward Transfer-Pricing Adjustments

This article considers the appropriate forum for disputing a denied downward transfer-pricing adjustment under subsection 247(10) of the Income Tax Act ("the ITA"). It begins by describing various scenarios in which a request for a downward transfer-pricing adjustment may arise, examines the delegation to officials at the Canada Revenue Agency (CRA) of the authority to grant the adjustment, and outlines the CRA's administrative practice on when to grant such adjustments. It then explores whether the Federal Court or the Tax Court of Canada is the appropriate forum to adjudicate a denied downward transfer-pricing adjustment. For disputes under the ITA, the division of jurisdiction between the two courts is generally well defined. The Tax Court has the exclusive jurisdiction to determine the correctness of an assessment whereas the Federal Court has the exclusive jurisdiction to review discretionary decisions of the minister of national revenue or officials at the CRA to whom the minister's powers have been delegated. This jurisdictional divide is less clear for disputes in respect of a denied downward transfer-pricing adjustment. Subsection 247(10) is the only provision in the ITA under which the correct determination of a taxpayer's income is subject to ministerial discretion. The exercise of ministerial discretion suggests that the appropriate forum to dispute a denied transfer-pricing adjustment is the Federal Court. However, subsection 247(11) specifies that the mechanisms for resolving all transfer-pricing disputes under part XVI.1 of the ITA are through the objection and appeal process in part I of the ITA. The language of subsection 247(11), coupled with its legislative history, the restrictions on the Federal Court's jurisdiction, and practical considerations regarding transfer-pricing disputes, all suggest that the Tax Court is the appropriate forum to consider a denied downward transfer-pricing adjustment. Historical case law from the Exchequer Court supports this conclusion. However, there are scenarios in which a denied downward transfer-pricing adjustment may not result in a notice of assessment being issued, and therefore no clear right of appeal to the Tax Court may exist. To ensure that the Tax Court has the jurisdiction to review all denied downward transfer-pricing adjustments, and not only those that result in an assessment, the authors recommend that part XVI.1 of the ITA be amended to include language requiring the minister to issue an assessment in all cases in which a downward transfer-pricing adjustment is denied.

Marginal Benefits? Electoral Geography and Economic Outcomes

I exploit a large natural experiment in Australia that saw the House of Representatives expand from 125 districts to 148 districts. This required substantial changes to electoral boundaries, which, for the first time, were determined by a body that was not subject to ministerial discretion. As a result of these changes to electoral boundaries, many postal areas moved from being in relative safe districts to relatively marginal districts. I examine the effect of these exogenous changes to the marginality of postal areas on median and mean incomes in subsequent years. I find no consistent relationship between changes in marginality and incomes in subsequent years. As such, there is no evidence that politicians systematically allocate income-affecting discretionary resources to marginal districts to increase their representation in Parliament, or to safe districts to ‘reward the base’.

Employment Dismissals in Malaysia—Examining the Ministerial Discretion

Upon notification by the Director General of Industrial Relations (DGIR) and by virtue of Section 20(3) of the Industrial Relations Act of Malaysia, the Human Resource Minister is conferred a discretion on whether or not to refer the dispute to the Industrial Court of Malaysia for adjudication. This is known as the “referral level.” After the Minister has perused and inspected the facts and circumstances regarding the dismissal and is satisfied that the representation of the dismissed party is not frivolous or vexatious, the Minister may refer the case to the Industrial Court to be adjudicated. Unlike ordinary civil courts, the Industrial Court cannot be approached directly by an aggrieved party unless the party’s matter has been referred to the said Court by the Minister. This paper explains the Ministerial discretion process and highlights the problems that may occur when the Minister decides on whether to refer or not to refer the matter to the Industrial Court.

Overreach of Executive and Ministerial Discretion

This article has been adapted from the 7th Michael Kirby Justice Oration, delivered at the College of Law & Justice, Victoria University, Melbourne, on 27 September 2017.

The Unanswered Question of Dunsmuir v. New Brunswick: What Standard Now Applies to Judicial Review of Ministerss Discretion?

The Supreme Court of Canada’s decision in Dunsmuir was intended to rationalize and simplify its approach to standards of judicial review of administrative decisions. However, the various judgments in the case actually suggest a subtle but important shift in the focus of the Court’s review of the “reasonableness” of government decisions. Two contrary and potentially conflicting approaches to selecting and applying the standard of review are reflected. On the one hand, the decision indicates that where the question is one of discretion, “deference will usually apply.” On the other hand, the Court will also continue to apply the factors that went into what used to be called the “pragmatic and functional test” for standards of review: whether there is a privative clause, the expertise of the decision-maker, and the nature of the legal question. Further, even where “reasonableness” is the chosen standard, courts are now called on to go beyond reviewing the decision-making process for legality to determine whether the decision itself falls within a defined set of permitted, “reasonable” outcomes.The Court has adjusted the law with respect to judicial review of all types of government decisions, including those involving ministerial discretion. In consequence, the judgment does not take into account the important distinctions between ministers as decision-makers as compared to other tribunals, including the fact that Parliament empowers ministers when it intends the decision to be subject to political, not just legal, accountability, through the minister’s responsibility to Parliament. The application of the Dunsmuir approach in that context has the potential to affect the balance between the legal and political accountability of ministers, their ability to delegate to their officials, and the respective roles of the courts, the executive and the legislature in making and implementing policy.

Digging Below and Looking Beside the Wall of Ministerial Discretion: Licences after Saulnier

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The limitations of monitoring immigration detention in Australia

Australia's mandatory detention policy allows for non-citizens without a valid visa to be held in sites of immigration detention on an indefinite basis. This means that asylum seekers who arrive without a valid visa can be detained from their time of arrival to Australia until their protection claim is finalised, unless ministerial discretion is exercised to enable their release into the community. Thousands of asylum seekers who arrived by boat have consequently endured long periods of indefinite detention in prison-like conditions in facilities established by the Australian government, both within Australia and in offshore locations. Many of these sites are in remote locations and there is limited monitoring provided by formal state and non-state bodies across this detention network that is systematic, transparent and independent. There are also few civil society groups and individuals with the capacity to assume a monitoring role. This article explores the inhibiting factors of monitoring immigration detention in Australia and offshore locations, and the prospects for securing systematic and transparent independent scrutiny should Australia ratify the Optional Protocol to the Convention against Torture (OPCAT). It also highlights the limits of an OPCAT-consistent monitoring system in the promotion and protection of the rights of asylum seekers.

A Defence of the Principled Approach to Tax Settlements

Public confidence in the administration and enforcement of taxes is a cornerstone of self-assessing tax systems. The Canadian Minister of National Revenue (the “Minister”), through the Canada Revenue Agency, is entrusted with the responsibility to administer and enforce the majority of tax legislation in Canada. Where disputes arise with particular taxpayers over the correct amount of tax owed, the taxpaying public ought to have confidence that the Minister has a principled basis in law for settling disputes for less than amounts previously assessed. Yet opponents of the principled basis for settlement consistently call for reform, arguing that compromise settlement should be permissible on the basis of litigation risk. The hazards of litigation, which are greater the more resources a taxpayer can deploy, are arbitrary in any attempt to uphold the rule of law in tax administration and enforcement. This paper reconciles jurisprudence on the authority of the Minister to settle tax disputes to answer objections raised by proponents of compromise settlements. It then challenges the Carter Commission’s recommendation that US-style offers in compromise should be available in Canada, in light of the Carter Commission’s scathing criticism of Ministerial discretion exercised in the advance ruling context. This criticism is extended to the notoriously arbitrary exercise of Ministerial discretion to grant taxpayer relief from interest and penalties to show that additional discretion would only deepen public suspicion that the tax system is not administered fairly. The last part of the paper rebuts remaining arguments for compromise settlement: that principled-basis settlement is costly; that the principled basis is detrimental to unrepresented taxpayers; that the US offer in compromise system is appropriate for Canada; and that tax foregone in compromise settlements is an acceptable form of government spending. Canadian taxpayers deserve to have confidence that, in a legal system governed by the rule of law, the tax legislation with which they must comply is applied consistently and according to legal principles, not according to litigation risk.

Avoiding Another ‘Squatter in Downing Street’ Controversy: The Need to Improve the Caretaker Conventions before the 2015 General Election

AbstractIn the UK the rules governing caretaker situations have historically been underspecified. The UK's constitutional traditions, such as prime ministerial discretion to time elections and its two‐party system, have in the past limited the frequency and duration of caretaker periods. However, the recently lengthened election timetable, new constraints on the executive introduced by the Fixed‐term Parliaments Act (2011), and a decline in the dominance of the two largest parties are raising the risk that the UK will experience caretaker periods more often and for longer stretches of time. In this paper, we offer an analysis of the UK's current caretaker provisions and conclude that the existing conventions are insufficiently detailed and can render such periods problematic and controversy‐prone. Important lessons, we suggest, can be learned from reforms in other Westminster systems, and from the caretaker rules of other countries.